No. 164.
Mr. Fish
to Mr. Seward.
Washington, August 26, 1874.
Sir: The Department is in receipt of your dispacth, No. 766, of June 23, ultimo, referring to Mr. Henderson’s No. 32, and inclosing copies of your correspondence with him concerning the assistance asked of him by the Chinese authorities in reference to the expedition to Formosa. By the same mail Mr. Henderson’s No. 32, containing a copy of his notification to the Americans said to be engaged in the expedition, was received.
In your letter to Mr. Henderson you pronounce the final clause of his notification not sufficiently stringent, and refer to the provisions of the act of 1818. A copy of Mr. Henderson’s notification is annexed.*
While this Department agrees that it is the obligation of this Government promptly and effectively to punish offenders against the law who may be American citizens, whether in China, or in Japan, or elsewhere wherever the laws of the United States may be enforced, at the same time there must be some actual violation of law to justify an interference.
The Government does not attempt to impose restrictions upon individual enterprise or commercial ventures of American citizens which involve no violation of law.
An examination of Mr. Henderson’s notification shows it to have been issued in his official capacity as consul, on a complaint made to him by the Chinese authorities. It is addressed to all citizens, of the United States, who are commanded to at once withdraw, and thereafter abstain from, all enterprises unfriendly to the Chinese government. It declares that any citizen of the United States who shall refuse to comply therewith, or who shall offend against its provisions, shall forfeit the protection of the United States.
This Department is at a loss to discover the power or right of the consul to issue a proclamation or notification of this character.
Under the provisions of the act of 1860, authority is given to the ministers of the United States in China and Japan “to issue all manner of writs to prevent the citizens of the United States from enlisting in the military or naval service of either of the said countries, to make war upon any foreign power with whom the United States are at peace, or in the service of one portion of the people against any other portion of the same people; and he [the minister] may carry out this power by a resort to such force as may at the time be within his reach belonging to the United States.”
This is an extraordinary power, conferred upon the minister alone, in a certain emergency, and within fixed limits. It is conferred upon him in consequence of the extraterritorial rights reserved in the countries named in the act to the citizens of the United States. The power is given to the minister alone, and is not shared by the consul.
But the notification of Mr. Henderson is his own act, issued by him as a consul of the United States, upon a general complaint made to him by the Chinese government. As a warning and caution to his countrymen, it was a prudent and commendable notice, and, so far as it was a [Page 333] mere notice and caution approved. But it goes much further; it is much more than a warning. In it the consul not only assumes the prerogative of the minister, but proceeds to decide in advance what acts will constitute an offense, and affixes a punishment.
Apart from the question of the power of the consul to issue such a notification in any case, it is apprehended that the notification in question, being addressed to all citizens of the United States, and commanding all to withdraw and abstain from all enterprises unfriendly to the Chinese government, might affect citizens of the United States lawfully employed by the Japanese. This Department is not advised as to the precise facts concerning the employment of each of the American citizens said to be engaged in Japanese service. Many citizens of the United States are understood to be employed in various capacities in the civil service of Japan, and it may be difficult to establish a standard to determine how far, or whether any, or which of the acts, which they may be called upon to perform in the appropriate discharge of their several engagements, may or may not be deemed friendly or unfriendly by another power. Acts and enterprises of a government may be deemed by another power to be unfriendly, and yet fall short, very far short, of acts of war, or of compromitting the neutrality of the state by which they are done. The erection by a state of a fortification, or the construction of a road, may be (in fact each has been) regarded as an unfriendly act, by another power. Bat this will scarcely justify, certainly it will not require a third power to enjoin its citizens under severe penalties from taking employment, much less from completing engagements into which they have already entered, and lawful at the time when entered into, in such erection or construction.
This Government does not feel called upon to admit that an engagement by one of its citizens to enter into the military service of Japan, or of another foreign power, made in time of peace, when no war or hostile demonstration is in process or in contemplation, is not a valid contract or that it is repugnant to law. Where the engagement is made in time of peace and hostilities are not in contemplation, there seems to be no distinction in the lawfulness of a contract for civil or for military service.
Should a war afterward be declared, or an insurrection break out, there seems to be no good reason why such contract, valid at its inception, should not be performed, even though a new contract of the same nature could not at the time legally be made.
If the contract for service be legal it cannot be that the person so contracting can escape the burdens and dangers incident to the employment, when his services are most needed, by declaring his foreign nationality. Should he desert, or refuse to obey orders, he would doubtless be exposed to the punishment which, by the laws of all countries, attend desertion and insubordination.
Should he form part of an expedition making a hostile attack, or an invasion into the territories of a country with which that in whose service he had become enlisted has become involved in a war subsequent to his enlistment, he joins in such attack or invasion, not as an American citizen, but as a soldier in the army of one of the belligerent nations; and the United States would take no notice, as against the attacked or invaded party, should he be killed in battle in the ordinary course of civilized warfare, and, in case of his being taken prisoner, would not exact more in his behalf than that no unusual or inhuman punishment be inflicted upon him, and would only watch and require [Page 334] that as a prisoner of war he be treated according to the accepted rules of civilized warfare.
It is apprehended therefore that no citizen of the United States, regularly enlisted in the service of Japan in time of peace, without reference to any intended act of war, and without anticipating any hostilities, could be punished according to the laws of the United States, and that he could not by any law of the United States, upon the commencement of hostilities, be compelled to abandon the service into which he had entered, or be punished for a refusal to do so.
Foreigners enlist in the military service of nearly every power. During the late rebellion in this country very, many foreigners of very many different nationalities took service, not only in the Union Army, but in that of the rebellion, and no remonstrance was made to the governments of which they were subjects, nor was their service in the insurgent army deemed a cause of complaint by this Government.
China herself has employed the services of Americans in her army, and whether against a foreign enemy or an insurrection seems to make no distinction in principle or in law, saving that our own act of 1860 alike forbids our citizens enlisting in the military or naval service of either of the powers named in the act, to make war upon any foreign power with whom the United States are at peace, or in the service of one portion of the people against any other portion of the same people.
Ward and Burgevine (both Americans) were in the Chinese military service. China did not regard their service as illegal or improper, or in violation either of public law or of treaty obligations.
It is believed, although of this I have no certain information, that the military service of China, at this time embraces a number of Europeans, and possibly some Americans.
The act of 1860 appears to have been passed to supply certain apprehended defects in the law of 1818, as applicable to Japan and China, and to provide remedies which, on account of remoteness, could not be furnished by the President under the then existing statutes.
While the Department is not prepared to say that the law of 1818 may not be in force in China and Japan, in its application to citizens of the United States within those countries, it is believed that the law of 1860 will, in most cases, supply a sufficient remedy.
Your course in advising Mr. Henderson to avoid accepting the invitation of the viceroy, as explained in Mr. Henderson’s telegram, is approved.
No benefit could result from the intervention of the consul; and it is quite apparent that the Chinese government was ready to obtain the countenance and assistance of an officer in the service of the United States in enforcing its general demand that the Japanese should quit Formosa.
Such matters are entirely foreign to consular duties. A copy of this dispatch, as it relates to these general questions, has been forwarded to Mr. Henderson and to the minister of the United States in Japan, and the chargé d’affaires in China, for their information severally.
I also inclose herewith an extract of an instruction sent to Mr. Williams, No 174,* under the date of the 29th July last.
I am, &c.,
- See inclosure 3 in Mr. Henderson’s dispatch No. 32, ante.↩